State v. Momoh

2018 UT App 180
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JOSEPH M OMOH ,
Appellant.
Opinion
No. 20161009-CA
Filed September 20, 2018
Third District Court, Salt Lake Department
The Honorable Mark Kouris
No. 161905069
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and JILL M. POHLMAN concurred.
ORME, Judge:
¶1 	Defendant Joseph Momoh appeals the district court’s
denial of his motion to withdraw his guilty plea. Specifically,
Defendant claims ineffective assistance of counsel by reason of
counsel’s alleged failure to adequately explain the immigration
consequences of his guilty plea. Defendant asserts that counsel’s
ineffective 	assistance 	precluded 	him 	from 	entering 	his 	plea
knowingly and voluntarily. We affirm.

State v. Momoh
20161009-CA 	2 	2018 UT App 180
BACKGROUND1
¶2 	Defendant is a lawful permanent resident of the United
States. In 2016, the State charged Defendant with the purchase,
transfer, possession, or use of a firearm by a restricted person,2 a
third degree felony (the Firearm Charge), see Utah Code Ann.
§ 76-10-503(3)(a) (LexisNexis 2017);3 possession of a controlled
substance with intent to distribute, a third degree felony (the
Drug Possession Charge), see id. § 58-37-8(1)(a)(iii) (Supp. 2017);
and possession of drug paraphernalia, a class B misdemeanor,
see id. § 58-37a-5(1)(b) (2016). With the assistance of counsel (Plea
Counsel), 	Defendant 	pled 	guilty 	to 	the 	Firearm 	Charge. 	In
exchange, the State dismissed the remaining two charges.
¶3 	In support of his plea, Defendant signed a statement
acknowledging that he understood the rights he was waiving by
pleading guilty. The statement included the following section:
Immigration/Deportation: I understand that if I
am not a United States citizen, my plea(s) today
may, or even will, subject me to deportation under
United States Immigration laws and regulations, or
otherwise adversely affect my immigration status,
which 	may 	include 	permanently 	barring 	my
re-entry into the United States. I understand that if
I have questions about the effect of my plea on my
1. Absent clear error, we defer to the factual findings of the
district court. See State v. Tripp, 2010 UT 9, ¶ 30, 227 P.3d 1251.
2. Defendant had previously been convicted of a felony drug
offense in Nebraska.
3. Because the statutory provisions in effect at the relevant time
do not differ in any way material to our analysis from those now
in effect, we cite the current version of the Utah Code for
convenience.

State v. Momoh
20161009-CA 	3 	2018 UT App 180
immigration 	status, 	I 	should 	consult 	with 	an
immigration attorney.
At the bottom of Defendant’s signed statement, Plea Counsel
certified that she had discussed Defendant’s statement with
him and that she believed he fully understood its contents.
Although 	no 	mention 	was 	made 	of 	the 	immigration
ramifications of the guilty plea at the subsequent plea hearing, it
does appear—and Defendant acknowledges—that the district
court complied with rule 11 of the Utah Rules of Criminal
Procedure when it accepted his guilty plea.
¶4 	Two 	days 	after 	pleading 	guilty, 	Defendant 	says 	he
received 	a 	letter 	from 	the 	United 	States 	Department 	of
Homeland 	Security. 	The 	letter 	referenced 	Defendant’s
guilty plea in the current case and notified him that Homeland
Security 	had 	probable 	cause 	to 	remove 	him 	from 	the
United States. Defendant immediately wrote to the district court
requesting to “recant” his guilty plea. He stated that he had not
been 	advised 	that 	pleading 	guilty 	to 	the 	Firearm 	Charge
would 	adversely 	affect 	his 	immigration 	status. 	Once 	the
district court appointed new counsel for Defendant, he filed a
motion to withdraw Defendant’s plea, arguing that it “was
not 	knowingly, 	intelligently 	and 	voluntarily 	entered” 	and
alleging ineffective assistance of counsel.4
4. In his motion, Defendant wove these two arguments together.
He claimed that his plea was not “knowing and voluntary”
specifically because he received ineffective assistance from Plea
Counsel. The district court recognized the distinct arguments
and made several findings on the adequacy of Plea Counsel’s
performance and the accuracy of her understanding of the
immigration consequences of the plea. See infra ¶ 7. This, then, is
not a case in which the claim of ineffective assistance of counsel
is first raised on appeal.

State v. Momoh
20161009-CA 	4 	2018 UT App 180
¶5 	Defendant 	and 	Plea 	Counsel 	both 	testified 	at 	the
subsequent evidentiary hearing. Plea Counsel testified that she
had 	consulted 	with 	an 	immigration 	attorney 	regarding 	the
immigration implications of Defendant pleading guilty to the
Firearm Charge. She stated that the immigration attorney had
provided 	her 	with 	a 	“pretty 	detailed” 	written 	analysis 	of
Defendant’s case,5 which analysis she recounted from memory:
His analysis of that was that [the Drug Possession
Charge] was an aggravated felony, [the Firearm
Charge] was not an aggravated felony; however [it]
was a charge that would render an individual
inadmissible, 	so 	there 	were 	immigration
consequences stemming from both charges. One
charge 	had 	more 	serious 	consequences 	for
immigration purposes than the other.
Plea Counsel explained that it was her understanding that an
“aggravated 	felony” 	charge 	would 	result 	in 	Defendant’s
immediate 	deportation, 	whereas 	a 	charge 	that 	rendered
the Defendant “inadmissible” meant that he would be unable to
adjust his status—apply for citizenship, for example—but not
necessarily 	that 	he 	would 	be 	deported. 	Plea 	Counsel
further testified that she had visited Defendant more than once
to discuss the immigration implications of pleading guilty to the
Firearm 	Charge. 	Each 	time, 	Plea 	Counsel 	brought 	the
immigration 	attorney’s 	written 	analysis 	to 	help 	facilitate
those discussions. It was Plea Counsel’s opinion that she had
covered the immigration issue with Defendant in a “complete
manner.” Specifically, they had discussed that both the Firearm
and 	Drug 	Possession 	Charges 	carried 	immigration
consequences, but that the Drug Possession Charge was likely to
5. The actual email correspondence between Plea Counsel and
the immigration attorney is not part of the record. Nor is the
letter 	Defendant 	claims 	to 	have 	received 	from 	Homeland
Security.

State v. Momoh
20161009-CA 	5 	2018 UT App 180
carry more adverse immigration consequences than the Firearm
Charge.
¶6 	Next, Defendant testified that Plea Counsel had discussed
possible immigration consequences with him, but that it was his
understanding that a conviction on the Firearm Charge was
“unlikely” to result in his deportation. He testified that if he had
understood that he was “likely” to be deported as a result of
pleading guilty to the charge, he would not have done so.
¶7 	At 	the 	conclusion 	of 	the 	hearing, 	the 	district 	court
concluded 	that 	Plea 	Counsel 	had 	not 	been 	ineffective 	in
representing Defendant—she had done “her due diligence” in
consulting the immigration attorney and had “explained [the
immigration ramifications] very, very well.” The court further
found that Defendant had entered the guilty plea knowingly and
voluntarily. Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 	Defendant first argues that the district court erred in
concluding 	that 	Plea 	Counsel 	had 	not 	rendered 	ineffective
assistance when she advised him of the possible immigration
ramifications of pleading guilty to the Firearm Charge. “When
confronted with ineffective assistance of counsel claims, we
review a lower court’s purely factual findings for clear error, but
we review the application of the law to the facts for correctness.”
Archuleta v. Galetka, 2011 UT 73, ¶ 25, 267 P.3d 232 (quotation
simplified). Accord State v. King, 2017 UT App 43, ¶ 13, 392 P.3d
997.
¶9 	Second, as a result of Plea Counsel’s alleged ineffective
assistance, Defendant contends that his plea was not entered into
knowingly and voluntarily. “We review the denial of a motion to
withdraw a guilty plea under an abuse of discretion standard,
disturbing the findings of fact made in conjunction with that
decision only if they are clearly erroneous.” State v. Ruiz, 2013
UT App 274, ¶ 12, 316 P.3d 984.

State v. Momoh
20161009-CA 	6 	2018 UT App 180
ANALYSIS
¶10 	Defendant first challenges his guilty plea to the Firearm
Charge on a claim of ineffective assistance of counsel. Defendant
next challenges the district court’s conclusion that he entered the
plea 	knowingly 	and 	voluntarily. 	See 	Utah 	Code 	Ann.
§ 77-13-6(2)(a) (LexisNexis 2017) (“A plea of guilty . . . may be
withdrawn only upon leave of the court and a showing that it
was 	not 	knowingly 	and 	voluntarily 	made.”). 	Because
Defendant’s second argument—that he did not enter the plea
knowingly and voluntarily—appears to be predicated solely on a
claim of ineffective assistance of counsel, and Defendant does
not challenge the district court’s factual findings that supported
its 	conclusion, 	our 	determination 	of 	Defendant’s first 	claim
essentially resolves his second claim. As such, our analysis of the
second claim is limited.
I. Ineffective Assistance of Counsel
¶11 	A 	successful 	ineffective 	assistance 	of 	counsel 	claim
requires a defendant to establish that (1) “counsel’s performance
was deficient”; and (2) “the deficient performance prejudiced the
defense.”6 Strickland v. Washington, 466 U.S. 668, 687 (1984).
Counsel’s performance is deficient if it falls below “an objective
standard of reasonableness.” Id. at 688.
¶12 	In 	arguing 	that 	Plea 	Counsel 	performed 	deficiently,
Defendant attacks her analysis of the immigration consequences
of pleading guilty to either the Firearm Charge or the Drug
Possession Charge. He asserts that he “should have been told
6. Because we conclude that Plea Counsel’s performance was not
deficient, we do not reach the second prong of Strickland. See
State v. Goode, 2012 UT App 285, ¶ 7 n.2, 288 P.3d 306 (“Because
both prongs of the Strickland test must be met to establish
ineffective assistance of counsel, we need not always address
both prongs.”).

State v. Momoh
20161009-CA 	7 	2018 UT App 180
straight-up that if he entered a plea of guilty to the [Firearm
Charge], he would be deemed ‘deportable’ and without any
possibility for equitable relief.” Contending that pleading guilty
to either the Firearm or Drug Possession charge would result in
his deportation, as evidenced by the letter from Homeland
Security he claims to have received, he argues that Plea Counsel
should have advised him to reject the plea deal and to take his
chances at trial, as slim as they might be.7 In sum, Defendant
argues 	that 	Plea 	Counsel’s 	inexperience 	in 	the 	field 	of
immigration law prevented her from properly informing him of
the 	possible 	adverse 	immigration 	consequences 	of 	pleading
guilty to the Firearm Charge.
¶13 	Conversely, 	the 	State 	argues 	that 	Plea 	Counsel 	was
required 	to 	notify 	Defendant 	only 	that 	pleading 	guilty 	to
the Firearm Charge carried the risk of negative immigration
consequences. In any event, the State argues that the district
court noted that Plea Counsel consulted an immigration attorney
and that her analysis was sound.8 As explained by the State,
“the firearm felony was preferable to the drug felony from an
immigration standpoint. A conviction on either felony count
would have made [Defendant] deportable. However, it is at least
arguable that the firearm felony is not an ‘aggravated felony’
7. “Slim” might be an overstatement. Officers responding to a
report of shots fired at Liberty Park arrived on the scene, saw
Defendant running, pursued him, and caught up with him just
after seeing him drop a bag and a jacket. In the bag, they found a
handgun, ammunition, and a spent casing. They also found a
variety of illegal drugs and paraphernalia.
8. Although both Defendant and the State discuss the correctness
of Plea Counsel’s immigration analysis on appeal, Defendant did
not 	raise 	such 	an 	argument 	at 	the 	change-of-plea 	hearing,
instead stating, “I’m not necessarily asserting that [Plea Counsel]
made an error.”

State v. Momoh
20161009-CA 	8 	2018 UT App 180
that would preclude discretionary relief from removal under
8 U.S.C. section 1229b.”
¶14 	With regard to the first prong of Strickland, we analyze
Plea 	Counsel’s 	performance 	cognizant 	of 	the 	“strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at 689.
When advising defendants of the possible negative immigration
consequences of pleading guilty, the United States Supreme
Court 	specified 	the 	requisite 	“objective 	standard 	of
reasonableness” in Padilla v. Kentucky, 559 U.S. 356 (2010), as
follows:
When the law is not succinct and straightforward
. . . a criminal defense attorney need do no more
than 	advise 	a 	noncitizen 	client 	that 	pending
criminal 	charges 	may 	carry 	a 	risk 	of 	adverse
immigration 	consequences. 	But 	when 	the
deportation consequence is truly clear . . . the duty
to give correct advice is equally clear.
Id. at 369 (footnote omitted). And as explained by Justice Alito in
his concurring opinion, the determination of what constitutes an
“aggravated felony” in the immigration context is a highly
complex matter.9 See id. at 377–79 (Alito, J., concurring) (“As has
been widely acknowledged, determining whether a particular
crime is an ‘aggravated felony’ . . . is not an easy task.”).
¶15 	Consequently, 	Defendant’s 	argument 	fails 	for 	two
reasons. First, because the determination of whether the Firearm
Charge 	constitutes 	an 	“aggravated 	felony” 	for 	immigration
purposes 	is 	neither 	“succinct” 	nor 	“straightforward,” 	Plea
9. Plea Counsel’s recommendation to accept the plea deal was
based on the immigration attorney’s analysis “that [the Drug
Possession Charge] was an aggravated felony; [the Firearm
Charge] was not an aggravated felony.”

State v. Momoh
20161009-CA 	9 	2018 UT App 180
Counsel 	was 	obligated 	to 	inform 	Defendant 	only 	that
pleading guilty to the Firearm Charge carried immigration risks.
See Jelashovic v. State, 2012 UT App 220, ¶ 10, 285 P.3d 14 (“Padilla
requires only that the risks be expressed—not that they be
expressed 	in 	any 	particular 	detail 	or 	by 	an 	attorney 	with
any particular expertise.”). Plea Counsel testified that it was her
understanding “there were immigration consequences stemming
from 	both 	charges,” 	which 	she 	explained 	to 	Defendant.
Defendant 	testified 	that 	it 	was 	his 	understanding 	that 	it
was “unlikely” that he would be deported if he pled guilty to the
Firearm 	Charge. 	This 	testimony 	demonstrates 	that 	Plea
Counsel did advise him that there was at least some risk of
negative 	immigration 	consequences 	to 	pleading 	guilty. 	As
such, Plea Counsel “did her due diligence,” in the words of the
district court, and even exceeded the duty imposed by Padilla by
consulting 	an 	immigration 	attorney 	to 	determine 	what 	the
likely immigration risks would be in Defendant’s particular
case and then sharing that information with Defendant, rather
than 	merely 	inviting 	him 	to 	consult 	with 	an 	immigration
attorney.
¶16 	Second, the plea statement that Plea Counsel discussed
with Defendant and that Defendant signed also warned, with
our emphasis, of the potential risk of deportation: “I understand
that if I am not a United States citizen, my plea(s) may, or even
will, subject me to deportation under United States immigration
laws 	and 	regulations, 	or 	otherwise 	adversely 	affect 	my
immigration status.” Defendant therefore cannot claim that he
was unaware that his guilty plea could possibly result in his
deportation 	when 	the 	statement 	he 	signed 	and 	said 	he
understood clearly indicated as much. See Ramirez-Gil v. State,
2014 UT App 122, ¶ 10, 327 P.3d 1228 (“Between the statements
in 	the 	written 	plea 	form 	explaining 	the 	deportation
consequences of Petitioner’s plea and Petitioner’s signature on
that form confirming that trial counsel reviewed the plea with
him, 	Petitioner 	cannot 	demonstrate 	that 	counsel 	performed
deficiently by failing to advise him that his plea could affect his
immigration status.”).

State v. Momoh
20161009-CA 	10 	2018 UT App 180
¶17 	For these reasons, we affirm the district court’s conclusion
that Plea Counsel did not perform deficiently, and Defendant’s
ineffective assistance claim is unavailing.
II. Knowing and Voluntary
¶18 	Once entered, a guilty plea may be withdrawn only upon
“a showing that it was not knowingly and voluntarily made.”
Utah Code Ann. § 77-13-6(2)(a) (LexisNexis 2017). Defendant
argues that Plea Counsel’s allegedly deficient performance in
advising him of the immigration ramifications prevented him
from 	entering 	his 	guilty 	plea 	knowingly 	and 	voluntarily.
Because we have determined that Plea Counsel did not perform
deficiently, see supra ¶¶ 14–16, we conclude that the district court
did not abuse its discretion when it denied Defendant’s motion
to withdraw his guilty plea, which was premised exclusively on
that theory.
CONCLUSION
¶19 	We 	conclude 	that 	Plea 	Counsel 	did 	not 	perform
deficiently when she advised Defendant of the immigration
consequences 	of 	pleading 	guilty 	to 	the 	Firearm 	Charge.
Regardless of whether her analysis was entirely correct, Plea
Counsel 	notified 	Defendant 	that 	pleading 	guilty 	carried
immigration risks. Defendant also signed a statement certifying
that he was aware that his guilty plea could potentially result in
deportation. Because Plea Counsel did not perform deficiently,
the district court did not abuse its discretion in finding that
Defendant entered his guilty plea knowingly and voluntarily.
¶20 	Affirmed.